The Supreme Court of Queensland has found that a former PSR director committed misfeasance in public office.
A class action could potentially be on the cards for doctors who faced the Professional Services Review under former director Professor Julie Quinlivan, as a long-running Supreme Court of Queensland case wraps up.
In late December, Justice Rebecca Treston found that Professor Quinlivan “either, knowingly acted in excess of her power or acted with reckless indifference or deliberate blindness to the invalidity or lack of power” in relation to ophthalmologist Dr David Kitchen.
Dr Kitchen, who practises in central Queensland, was initially referred to the PSR in June 2017.
Professor Quinlivan referred him to a committee, and he was ultimately disqualified from billing Medicare.
The crux of Dr Kitchen’s Supreme Court of Queensland case is that there was just a 17-minute window between Dr Kitchen’s 96-page written submission being emailed to Professor Quinlivan and Professor Quinlivan deciding to refer him to a committee.
Under section 89C(2) of the Health Insurance Act 1973, the director of the PSR is obliged to take into account any submissions made by a practitioner under review before deciding to take further action.
Justice Treston found that it was “well-nigh impossible for anyone to read 96 pages of written submissions in 17 minutes or less”, much less “digest and understand” the submission and assess any attachments.
“Furthermore, I am satisfied that the Director acted with reckless indifference to the harm that was likely to ensue,” Justice Treston wrote.
“There was, in this case, the absence of an honest attempt to perform the functions of her office, and that constituted an abuse of process.”
Brisbane-based GP Dr Anchita Karmakar, who also attempted to take on the PSR in court, said Dr Kitchen’s win represented a potential path forward for other doctors who were reviewed by the regulator under Professor Quinlivan.
“When you have a decision like this that’s been made in court and there is a class of or population of people that have been affected or have gone through a similar process, it’s only natural for the assumption to be made that, hey, that might have happened to everybody else that was going through the same thing,” Dr Karmakar told The Medical Republic.
“In that sense, a class action as such is a natural assumption that I would think that the Commonwealth and PSR legal team would be potentially anticipating.”
Dr Karmakar, whose case against the PSR was going through the system at the same time as Dr Kitchen’s, also holds a law degree.
In order to launch a class action, she said, a venture capitalist typically provides funding to a law firm willing to take on the case.
“I’ve been approached by a few [firms] already,” Dr Karmakar said.
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“One thing that we really want to emphasise, and I’ve always said this, is – don’t get me wrong, money is great, finance is fantastic, I would love to not work six days a week – but money’s never been the focus.
“I can speak on behalf of [Dr Kitchen] as well as myself and, I would say, probably 100% of people that I’ve gone through this journey with: money was never the focus of any of our litigations or protest.
“It was really to clear our names … not only in the eyes of our profession and clients and patients, but even to our family.”
Dr Karmakar said that there was a lack of understanding in the wider community that PSR findings are normally administrative in nature, not criminal.
“It wasn’t a criminal offence or anything like that, but you’re always looked at through that lens, and that ramification is lifelong,” she said.
“… [Dr Kitchen] has spent exorbitant amounts of money, a lot of effort, a lot of time, a lot of emotional [labour] … and what he has been able to illustrate is a support that we were all looking for.
“None of us [who have gone through the PSR review process] are innately bad, but we’ve been tainted as bad.”
For her part, Professor Quinlivan has claimed that she read a printed copy of Dr Kitchen’s submission over the course of a weekend, prior to receiving the emailed copy; Justice Trenton was satisfied, on the balance of probabilities, that this was not the case.
Dr Kitchen was ultimately awarded close to $2 million in damages.
It is unclear whether Professor Quinlivan will be personally liable for the costs, given that her former employer is not technically party to the matter.
When asked whether it would have a hand in covering costs, the PSR told The Medical Republic it would be up to the parties involved to consider the judgement and determine next steps.
Queensland courts allow 28 days for defendants to lodge a notice of appeal. For Professor Quinlivan, this will expire on Friday 16 January.
